EPA on Mann’s “Fraud” Invective

Michael Mann, now feigning sensitivity towards Mark Steyn’s use of the word “fraudulent”, used identical language in the Climategate emails against critics without the slightest compunction. Mann’s hypocrisy has been widely noted.

Unpublicized thus far is a discussion by EPA, in which EPA concluded that Mann’s accusations of “scientific fraud” were within the scope of “acceptable and appropriate” scientific exchange and that it is “entirely acceptable and appropriate for scientists to express their opinions and challenge papers that they believe are scientifically flawed” in such terms.

The EPA’s finding appears to be inconsistent with Gavin Schmidt’s recent tweet arguing that such language is “per se defamatory”:

Saying that ppl [people] are frauds is per se defamatory. Goes beyond disagreement/error/dislike.

The EPA’s consideration of Mann’s invective arose because one of the petitions for reconsideration of the EPA Endangerment Finding (Peabody here) had challenged the conduct of Climategate scientists on the grounds that their actions fell “far short of the standards to which EPA is subject in preparing its Endangerment Finding”. Among their list of alleged misdeeds were the unprofessional denigration of critics by the Climategaters. One of their examples was Mann’s email to Andy Revkin shortly after publication of McIntyre and McKitrick (2005 GRL), in which Mann wrote:

The McIntyre and McKitrick paper is pure scientific fraud. I think you’ll find this reinforced by just about any legitimate scientist in our field you discuss this with. To recap, I hope you don’t mention MM [McIntyre and McKitrick] at all. It really doesn’t deserve any additional publicity.

This incident was considered by EPA in Comments 3-33 and 3-34 in RTP Volume 3. In the RTP volumes, EPA had attempted to synthesize criticisms from the various petitions, providing sort-of responses to each synthesized criticism, though, too often, the responses read more like inline comments at Real Climate than the results of impartial deliberation.

In Comment 3-33 in Volume 3, they introduced the conduct issue arising from Mann’s various defamatory comments as follows:

Peabody Energy argues that Michael Mann engaged in “a pattern of scholarly intimidation” against those whose research challenged his own, and that this affected the way other researchers presented their results in journal articles….

Peabody Energy concludes that the goal of the CRU e-mail authors’ “intimidation/bad-mouthing [was] to influence scientific development” and effectively prevent “dissenting scientific voices from being heard” at conferences or in the climate science literature.

In Comment 3-34, they directly cite Mann’s defamatory email to Revkin about us, introducing it as follows:

In addition, Peabody Energy claims that Michael Mann “continued his battle” against climate change “skeptics” like Stephen McIntyre and Ross McKitrick in the press, quoting an e-mail from Mann to New York Times reporter Andy Revkin, sent on February 8, 2005:

The McIntyre and McKitrick paper is pure scientific fraud. I think you’ll find this reinforced by just about any legitimate scientist in our field you discuss this with. To recap, I hope you don’t mention MM [McIntyre and McKitrick] at all. It really doesn’t deserve any additional publicity.65

…
Peabody Energy concludes that the goal of the CRU e-mail authors’ “intimidation/bad-mouthing [was] to influence scientific development” and effectively prevent “dissenting scientific voices from being heard” at conferences or in the climate science literature…

In Response 3-34, the EPA completely pooh-poohed any suggestion that there was anything untoward about Mann’s accusations, which, according to Gavin Schmidt’s criteria, were “per se defamatory”. The EPA stated that these remarks merely “reflect[ed] his scientific judgement that the McIntyre and McKitrick (2005) paper was flawed” and that it is “entirely acceptable and appropriate” for scientists to “express their opinions” on papers that they “believe to be flawed”:

Regarding the e-mail from Michael Mann to Andy Revkin, Mann’s statements reflect his scientific judgment that the McIntyre and McKitrick (2005) paper was flawed. As discussed thoroughly in our previous responses (e.g., 3-23), it is entirely acceptable and appropriate for scientists to express their opinions and challenge papers that they believe are scientifically flawed. It was on this basis that Mann recommended that McIntyre and McKitrick were not worth interviewing because their paper was flawed.

One feels that the authors and reviewers of these EPA documents would make excellent witnesses in the Steyn proceedings. Unfortunately, the names of authors and reviewers of the RTP documents were not reported. Perhaps Steyn can identify them through an FOI. (Reviewers of the original Endangerment Finding were reported and included Gavin Schmidt.)

Postscript: In Response 3-34, EPA stated: “We note that we have responded to the scientific arguments presented in McIntyre and McKitrick (2005) as well as numerous other issues related to paleoclimatic reconstructions, both in the RTC document for the Endangerment Finding and in Volume 1 of this RTP document.” In fact, neither McIntyre and McKitrick (2005 GRL) nor McIntyre and McKitrick (2005 EE) was cited or listed in the lengthy bibliographies of the RTC or RTP documents; EPA’s response was nothing more than a reference to Wahl and Ammann.

97 Comments

I don’t like the use of “fraud” in climate discussions.”Wrong,” together with any similar term, i.e., “unsupported,” “scientifically unjustified,” “misleading,” and even “misrepresentation” are scientific judgments that do not necessarily impute a knowing, intentional, deliberate effort to impart false information for the purpose of gaining an unfair advantage or to injure another person. “Fraud” is a legal conclusion. It should only be used when clear and convincing evidence of falsity, intention and harm is present. Otherwise it becomes like a road-side bomb, sudden, injurious, without an opportunity to defend oneself. Cf. Mann’s own use of the term against those scientists who thoughtfully express disagreement with his claims. Use of the word clouds the debate, because it is often used imprecisely. Many good, direct, and critical words can be used, instead.

Nevertheless, I think Mann is a fool for suing over his opponents’ use of the term. Perhaps he feels that filing lots of lawsuits, without expecting to go to trial, is a shield against anyone else criticizing him. Now that he has filed several actions, he may find himself stuck in a legal forum where the question of his alleged fraud is fully and loudly litigated, including substantial documentary discovery and penetrating depositions.

One feels that the authors and reviewers of these EPA documents would make excellent witnesses in the Steyn proceedings.

Would they? Steyn’s comment was addressed to the general public. I have trouble seeing what an EPA employee’s opinion has to do with it. There’s a very important distinction between factual statements and vigorous expressions of opinion (sometimes discussed at Lucia’s, as here; see the link to Milkovich v. Lorain Journal for more discussion), but I can’t see how an EPA person gets to testify about how Steyn’s readership would or should interpret the words.

(This is a separate question entirely from whether Steyn believed his own words, which I think should be decisive in this case.)

I think what the EPA states is relevant to the commonly accepted usage of the term “fraud.” Personally, I don’t agree with the EPA’s conclusion that it is harmless, but I believe it is a relevant piece of evidence. Any number of terms can be completely harmless in one context and very harmful in another.

Also, I personally think the term “fraud” should only be used when there is evidence of fudging data, and I think that Steyn made a tactical error when using the term. There are any number of terms that could be applied to Mann that could be used to legitimately discredit his work (for instance gobsmackingly stupid or sloppy)that would have the same practical effect as using the word “fraud” in the sense that Steyn used it. I don’t think Mann has a proper legal case against Steyn, but Steyn could have easily avoided the problem by using equally critical language and avoiding the “f” term.

JD
Steve: I agree with you. The present case has become particularly bizarre because of the many false statements in Mann’s pleadings, some of which Steyn has described with relish as “fraudulent”.

I think what the EPA states is relevant to the commonly accepted usage of the term “fraud.”

But the “commonly accepted” usage of a word…out in the general public as opposed to the specialized world of the EPA…is that something that’s really suitable for testimony? Or isn’t it something to be left to the factfinder? I’d agree it was admissible if Steyn had written his column in a specialized EPA newspaper, intended for an audience whose lingo the jury didn’t know. (Just as in a contract case between merchants you’d want testimony on how a word was used in that industry.) I could picture each side wanting to call a couple hundred random citizens to say what they think the word means…and the judge saying, “Thanks, but no thanks.”

I think that Steyn made a tactical error when using the term.

If his goal was to be careful and avoid suits, I’d agree. But I don’t think it is, and I think he’d call it a loss if he (or anyone else) had to trim their language back for fear of Mann-style suits (while Mann himself continued his usual levels of invective).

I notice in his many columns on the subject that Steyn never relies on the idea that his speech is protected because it’s not factual, but only “opinion” or “hyperbole.” I’ve seen several commentators make very intelligent arguments to that effect (and they’ve got some support in the case law, even though I come down on the other side)…but I’ve never seen it from Steyn himself. I think he stands, will stand, and wants to stand, for the proposition that he can say what he likes about Mann as long as he means it. (Which is, of course, true…unless the courts change it all.)

Steve: A very interesting distinction. I think that you’re right about Steyn on this point. Steyn also has a surprisingly long history of commentary on Mann’s hockey stick, in which he used a variety of colorful terms especially at Climategate. There is plenty of evidence that he meant what he said. Similarly with Simberg and CEI.

I take the definition of “fraud” as knowingly mis-representing reality to gain an unearned benefit, whether tangible such as money or psychological. (Puffing up one’s reputation, such as incorrectly claiming to have won a Nobel prize, is closer to fraud.)

I take “false” in a logical sense, could be fraud, could be just irresponsible incompetence. (“Irresponsible” because of the impact on human life.)

In my opinion, ‘fraud’ is certainly be applicable to the “trick” of grafting two temperature series together without being explicit about what the line on the graph really represents, with the intent of “hiding the decline” in one of the temperature series. Maybe you count that “trick” as “fudging the data.” But I think of “fudging the data” more narrowly as tricks with data creation, selection and manipulation.

Incidentally, Gavin Schmidt is clearly correct when he says that “fraud is defamatory per se.” All that means is that calling someone a fraud would tend to diminish their standing in the eyes of a reasonable person. Lots of things are “defamatory per se” that are not actionable, because there are obvious defenses, such as truth or fair comment – both of which are available to Steyn, in my opinion.
Steve: there is much to criticize in Mann’s work, but he consistently showed temperature data in a different color than proxy reconstruction, with the colors being legended in the caption. I have no objection to this. Nor is this an accurate way of objecting to hide-the-decline in the Briffa reconstruction. It’s not something that I’ve taken exception to. Nonetheless, the criticism is made over and over by critics who are less familiar with his work than I am. One of Mann’s tactics is to selectively respond to the most easily rebutted criticism, such as this one. The substantive issues are the issues that have been raised at Climate Audit and in our articles. I wish that Mann’s critics would refrain from this particular canard.

“Steyn’s comment was addressed to the general public.”
Indeed. And Mann’s was addressed to Revkin. It only reached the public when the email was stolen and published widely by the very people who complain of it.

Steve: Mann sent the defamatory email to highly influential people with the intent of damaging McKitrick and me within the climate community. Surely you are not seriously suggesting that the email wasn’t defamatory because the correspondence was surreptitious? An email can be libelous even if it is distributed privately.

Also to avoid any accusations of inconsistency, it is my understanding that accusations of “fraud” can be defamatory, but that it is virtually impossible for US “public figure” to demonstrate “actual malice” under US libel law and that libel judgements in Canada against US parties cannot be enforced in the US. I saw little purpose in taking legal action against Mann for pragmatic reasons, not because I share Judy Curry’s view that such language is acceptable. As you and others are aware, I avoid accusing others of “fraud” – a point that even Mann acknowledged in his pleadings – and enforce this policy on CA commenters.

In the case at hand, I believe that Mann’s largest obstacle is that there is no evidence in the case at hand supporting “actual malice” (as legally understood.) I also think that many of the statements at issue e.g. about the terms “data torture” and “manipulation” are not libelous for various reasons.

Surely you are not seriously suggesting that the email wasn’t defamatory because the correspondence was surreptitious? An email can be libelous even if it is distributed privately.

I think Nick’s point is that the specialized “EPA usage” of the f-word applies to a mostly-private communication to the EPA…but does not apply to a column addressed to the general public. (I don’t really believe the EPA has this “specialized usage”…I think it was their excuse to do nothing about the complaint. But even so I agree with the main point…that in the event of litigation, the court should be looking at what the words mean to the intended audience.)
Steve: Mann’s use of the word “fraud” was meant to damage us and arguably did damage our reputations with Revkin, Jones and Briffa. I notice in retrospect that, though our article was widely covered at the time and though it was an issue that Revkin covered, Revkin refrained from giving us any press coverage. Mann also made defamatory statements about us to other media, resulting in at least one case in a story not going forward. In contrast, Steyn’s language against Mann did not cause Mann any actual damage. Mann’s claim is entirely “libel per se”.

“I think Nick’s point is that the specialized “EPA usage” of the f-word applies to a mostly-private communication to the EPA”
Pretty much. There’s a general expectation that not everything said in private emails can be said publicly. So it doesn’t matter whether the email occurrence is theoretically libellous – that’s not on trial. The question is whether the court can take that as setting the standard for public discourse.

I think Nick’s point is that the specialized “EPA usage” of the f-word applies to a mostly-private communication to the EPA…but does not apply to a column addressed to the general public.

I think that your understanding of the facts is wrong. Mann’s defamatory comment wasn’t a communication to the EPA. It was a communication to the then most prominent media reporter on climate issues (Andy Revkin of the New York Times) and to two of the most influential members of the climate community (Phil Jones and Keith Briffa), both of whom were active in IPCC.

I don’t see how that the words are more damaging when presented to Steyn’s audience. It seems the opposite to me.

In my comment about the relevance of Mann’s use of the term “fraud”, I stated that it would be relevant to the “commonly accepted usage of the term.” I didn’t state that there was a different standard for public discourse or private discourse, and I know of no legal principle that excuses defamatory remarks on the basis of how many people received the defamatory communication. Thus, I believe that the fact that Mann used the term “fraud” where there was no fudging is relevant evidence as to the general meaning and usage of the term. (general meaning can be ascertained through private as well as public communications)

Also, I believe that Nick should reflect on his attempt to deflect responsibility for Mann’s despicable lie by raising the issue of the “stolen” emails. Mann’s behavior is equally despicable whether or not other people become aware of it. In Mann’s libel suit, the focus is properly on Mann and Steyn. However, the fact of Mann’s smear of Steve was discovered is totally irrelevant. In some ways, it is even worse that it was not publicly made because Steve could not defend himself. The fact that people try to minimize or excuse the smear just shows how low the standards are in the warmist community.

As a follow-up to my 8:02 post, I would like to clarify a several matters.

The public or private nature of a statement is irrelevant in terms of its defamatory nature or the liability of the speaker. The public position of the person discussed (public figure under the law) is relevant to the legal liability of the publisher of an allegedly defamatory statement. If a person is a public figure, the publisher is not liable for defamation unless what has to be proven as a false statement is made with malice.

Also, the legal standards regarding liability for using the term “fraud” to describe either Mann or Steve’s work are almost certainly the same. (I believe Steve is a public figure as is Mann) However, in a practical sense, I believe that Steyn’s use of the term fraud is less blameworthy than Mann’s usage of it to describe Steve because Mann’s work is of such poor quality and he is so devious in his publications that his work sometimes comes close to fudging. (for instance, not clearly and openly stating that he was splicing temperature records on to tree proxies in his hockey stick paper). Also, Steyn was clearly making political commentary where more leeway should be allowed. Mann, when he accused Steve of fraud was making scientific and professional commentary, in which he should be much more careful about that which he criticizes if he wishes to be viewed as a competent scientist.

Finally, how a potentially defamatory statement is discovered is obviously irrelevant to whether the speaker is liable for the statement. (How it is spread may be relevant to damages, but it would not be relevant to whether there is any liability in the first place.) Thus, the reference to the allegedly stolen emails is totally irrelevant to initial legal liability for the statement and is an improper attempt to deflect from Mann his responsibility for making the statement.

Hi, Steve — I think the 3rd paragraph above (response to Nick) is yours, but for some reason it does not appear in bold, so it might not be clear to some readers that it is a response comment from you??

Mann would have had no reasonable expectation that a comment on an exploding news story to a reporter covering the beat would not color the coverage, much less be considered merely a private comment. I’ve spoken to countless reporters and fielded hundreds of email and phone inquiries from journalists. You never, ever, assume an email or comment to a journalist is anything other than a public statement.

Ross,“You never, ever, assume an email or comment to a journalist is anything other than a public statement.”

The journalist did not publish it. Nor is the fact that Mann does not think well of M&M newsworthy. And it’s hard to imagine that an experienced NYT journo had his opinion changed by mere rhetoric. Mann linked to his RC article, which likely had far more influence with Revkin than the SF words.

Nick, you missed Ross’ point. It matters not whether it was newsworthy or not. The fact you SENT it to a reporter means you have no expectations of privacy. Ergo, by sending it to them, regardless of what actually happened, you are making the statement public.

Yelling “fraud” is not nice, but defamatory? Only if you highly value the opinion of the screamer. However, the fact that Mann used it and the EPA said that Mann’s use was not defamatory is not going to help Mann’s case at all.

AndyL: Did the EPA develop this interpretation of the word ‘fraud’ on their own, or did they consult Mann to ask what he meant by it? I hope any FOI asks for correspondence (if any) between EPA and Mann on this.

Yes, indeed; that’s what I wonder, too. Did the EPA employees take it upon themselves to assert, “It was on this basis that Mann recommended that McIntyre and McKitrick were not worth interviewing because their paper was flawed”? If they did, that would be interesting in itself, since the EPA’s response would be shown to be unsupported by any evidence of what Mann actually meant.

The quote from Mann’s email is as supplied to EPA by Peabody, but it is very misleading. It pastes together two separate parts. The part before “To recap” is at the start of the email, then several pages of material, most about Moberg, then the “To recap…”. Following the “pure SF” bit, there’s this:“Please see the RealClimate response:
[1]http://www.realclimate.org/index.php?p=111
and also:
[2]http://www.realclimate.org/index.php?p=114″
and the latter is a detailed listing of the alleged flaws.

But even from the misleading version of the quote, it’s not hard to infer that Mann thought the paper was flawed.

But even from the misleading version of the quote, it’s not hard to infer that Mann thought the paper was flawed.

The question isn’t whether Mann thought the paper was flawed; who disputed that? The question is, what was the EPA’s basis for asserting that Mann was only saying it was flawed, rather than that was literally “pure scientific fraud”? He claimed it was not “real science.” That seems to go beyond merely “flawed.” I, myself, have no doubt Mann wanted Revkin to believe the Moberg paper was flawed, and the MM paper was actually fraudulent.
Steve: well put. It’s amazing how Nick can excuse Mann’s accusations of “fraud”, while taking umbrage at Steyn.

Did the EPA develop this interpretation of the word ‘fraud’ on their own, or did they consult Mann to ask what he meant by it? I hope any FOI asks for correspondence (of any) between EPA and Mann on this.

Steve: it would be more interesting to know whether Gavin Schmidt consulted on the EPA denial decision and/or supporting documents. He was an external reviewer of the Endangerment Finding. Some of the issues in the RTP supporting documents are ones on which EPA would be imprudent to opine without technical review and Schmidt would be a highly logical reviewer, though views cleared through Schmidt would hardly constitute an independent assessment of the Mann controversies.

EPA’s view: “Regarding the e-mail from Michael Mann to Andy Revkin, Mann’s statements reflect his scientific judgment that the McIntyre and McKitrick (2005) paper was flawed.”

For those not familiar with English, “flawed” means ‘contains errors.’ Errors are typically honest mistakes

A “fraud” means ‘constructed to deceive.’ Deception is never honest.

So, the EPA rejoinder was written either by someone with a grossly inadequate knowledge of English, or by a competent English speaker whose intent was to misrepresent the plain meaning of “fraud.”

If such a misrepresentation is willful, it reflects an intent to deceive.

Flawed and fraud as stand-alone terms can never be equated.

Any one who has read McIntyre & McKitrick 2005 knows it is not a fraud. Nor, actually, does it contain any notable errors (in my judgment).

So, labeling M&M 2005 as a fraud is either a sign of incompetence, or itself a fraud. Mann is certainly not mathematically incompetent (scientific competence is another matter). So, it seems Mann’s accusation of fraud was itself a fraud, with Rivkin its target for deception.

A construction made with intent to deceive is a fraud. So, we’re in full spiral mode here. The EPA has apparently constructed a fraud in order to defend a fraud.

Not only are “flawed” and “fraud” fundamentally different, but it is difficult to imagine that any fluent English speaker/writer could be unaware of the difference between them.

All scientific works of “fraud” are “flawed” but not vice-versa. When a report asserts that Mann’s accusation of “pure fraud” is saying nothing more than “flawed” the writer is consciously deceiving the audience. Such deception should itself qualify for the “f-word” as a descriptor.

The intent of the fraud is to fool someone into believing something that isn’t true. A flawed fraud could only be one that tricked absolutely no one. The Piltdown man was a fraud but did not start becoming flawed until more than 43 years later. Who knows there may be still someone who believes. False data used to trick people is not flawed.

It doesn’t. The Peabody petition in quoting the email simply said:“Mann continued his battle against McIntyre and McKitrick in the press, telling New York
Times reporter Andy Revkin:”

Their stated objection was to continuing the battle, not the language used. And the EPA answered that directly, by saying that it is OK for scientists to write to people about flawed papers. Their comment did not mention the fr… word.

Regarding the e-mail from Michael Mann to Andy Revkin, Mann’s statements reflect his scientific judgment that the McIntyre and McKitrick (2005) paper was flawed.

Mann says the paper was fraud; the EPA says he meant the paper was flawed. How is that not equating “flawed” with “fraud”? Is there anything so obvious that you won’t try to obfuscate it?
Steve: a while ago, I would have said that we don’t know. However, Nick recently agreed that Mann’s Statement of Claim misrepresented his work as being about “temperature data”. So Nick didn’t try to obfuscate this. But this was one of the rare examples (and Nick’s unusual non-obfuscation rather took me by surprise.) Just for fun, Mosher tried to out-Nick Nick on this issue, but his heart wasn’t in it.

So how will this get spun? When a scientist calls another’s work fraud, then it is just an acceptable method to say that the others work is flawed. The U.S Government endorses this view, and thus, has exonerated Mann.

However, the EPA was silent about the case where a journalist calls a scientist’s work fraud. Therefore Steyn is outside of acceptable speech.

Mann and the orthodoxy remind me of the Enron days where the shared narrative was that “Enron was a great company.”

Dissenters were told by Jeff Skilling that they “didn’t get it.” When asked for some basic financial information on a conference call, Skilling named-called the person asking ( …. asshole).

Mann is sort of like Skilling and Andy Fastow appealing to authority to keep the ruse going.

Steve: I read Kurt Eichenwald’s interesting book and did several early CA posts on Enron events http://climateaudit.org/tag/enron/. The comparison to Fastow’s abusive personality also struck me as parallel. I also liked Eichenwald’s observation that the Enron problem was first noticed by a short seller who noticed that Enron always reported a tiny but positive profit even though capital employed was enormous, with the slightness of the profit margin indicating accounting issues to him. In the medieval-modern comparisons, I was equally struck by the inconsistency between reconstructions other than a very slight “profit” in modern versus medieval.

The irony of Mann’s ‘scientific fraud’ message to Revkin, in light of his lawsuit against Steyn et al, is almost too rich to stomach. Steve McIntyre, should Mann win a judgement in the DC Court, might you and Ross not profit by filing a defamation suit against Mann? I mean, since calling someone a fraud is per se defamatory.

Steve: I suspect that the statute of limitations has expired. You have to move fairly promptly. I didn’t learn of Mann’s accusation until nearly four years afterwards and it is now another five years. I filed a misconduct complaint in 2005 with the University of Virginia about Mann’s defamatory allegations of “dishonesty” to NWT, but the University of Virginia refused to open a case file. Soon afterwards, Mann moved on to Penn State.

“Standing” doesn’t matter for amicus briefs in the way it does for actually becoming a party to the lawsuit. Lots of amicus briefs are written by advocacy groups who have no involvement in the case at hand, no involvement with the parties, and no property at stake…but only a great interest in the legal questions being decided.

It would be morally satisfying in any litigation to demonstrate that the other side is hypocritical. But only rarely if ever is this relevant, at least in a common-law suit like libel.

If your opponent testifies, you can attack his character for truthfulness, because it’s relevant to whether his testimony should be believed. (We discussed it a little at Lucia’s.) But his character for consistency isn’t relevant to the case or the appeal, and even if it were, you couldn’t introduce a specific instance like this to attack it. So I don’t think McIntyre and McKitrick would have anything to contribute on this appeal (at least not based on the subject of this post)…though if the case goes to trial they might well have something to say about the merits of the case against the Stick.

(JD Ohio has often commented on the practical value of showing a judge what kind of person your opponent is, when you have a proper vehicle for doing so. And I wouldn’t dream of disputing that. But I don’t think there is such a vehicle for the subject of this post.)

I think that Mann’s hypocrisy has great relevance. A key issue in the case is what meaning is conveyed when someone says a work is fraudulent. Mann has argued in his briefs for a literal definition that requires an intent to deceive. The defendants have argued that fraudulent is often used in a colloquial sense to merely suggest a work is “bogus” or as the SPA suggests, “flawed”.

The defense lawyers will have great fun deposing Mann on exactly what he meant when he called SM & MM work pure fraud. Mann will be hard pressed to defend the position that it was written with an intent to deceive.

Steve: I am curious wherever Mann’s description of your article came before or after your exoneration by the North and NAS panels?:)

I think that Mann’s hypocrisy has great relevance. A key issue in the case is what meaning is conveyed when someone says a work is fraudulent. Mann has argued in his briefs for a literal definition that requires an intent to deceive. The defendants have argued that their statements were rhetorical hyperbole, and that fraudulent is often used in a colloquial sense to merely suggest a work is “bogus” or “flawed” as the EPA suggests.

The defense lawyers could have great fun deposing Mann on exactly what he meant when he called SM & MM work pure fraud. Was his statement intended as rhetorical hyperbole or did he intend to convey that the article was written with an intent to deceive? Was he aware of the North and NAS panel exoneration?
Steve: as JosephW acutely observed, Steyn’s main line of defence seems to be honest belief, not rhetorical hyperbole. The latter line is more CEI’s – who didn’t use the word “fraudulent”, but made the Sandusky comparison.

Steyn’s main line of defence seems to be honest belief, not rhetorical hyperbole. The latter line is more CEI’s – who didn’t use the word “fraudulent”, but made the Sandusky comparison.

Showing also that Steyn has the best understanding of what’s at stake here.

In a garden-variety lawsuit, of course the defense wants to raise every defense it can. Whatever works, works. But in a case like this, with a major free-speech principle on the line, a victory on “hyperbole” grounds would say to Mann, “You can make people back off from what they said by suing them.” It would not end his efforts at intimidation through lawsuit.

Steyn’s message is, well, what Oriana Falliaci said to her critics. (Which Steyn has quoted in response to previous efforts to censor his opinions.) A victory on “no-malice-on-this-theory” grounds…if it’s won as a matter of law before the appellate court…says to Mann, “You can’t make people do anything (except laugh at you) by suing them. So cut it out.”

Joseph W: Thanks for the links and insights. After reading his piece on Falliaci, I think Steyn was very restrained in his description of Mann and his work. As and when Steyn wins, Mann should expect the full treatment.

The more I think about all of this, the more I become convinced that Mann entered into litigation somewhat casually, if not light-heartedly, using other people’s money in what he probably thought would result in a quick resolution via apology/retraction by his targets.

I highly doubt that he thought it would get this far and I would not be surprised if he took advantage of the first opportunity to retreat and claim victory.

As a progressive liberal I really don’t like much of what Steyn likes (except about music, where I find him delightful), so it stings a little to see him so correct on this issue. It hurts even more to see Paul Krugman so completely wrong. In any event, I will be interested in the outcome of Steyn’s countersuit.

Steve: Tom, Like you, I have been fascinated by his music commentary, particular his backstories to familiar songs. I knew his name as a columnist, but hadnt read his columns or followed his work prior to this incident. His attitude towards guns and the militarization of police is hardly mainstream US right wing. {This latter sentence is an exchange between Tom and me, is against blog policy and not to be used as a coatrack for discussion of guns and police.)

For me Krugman was good on clustering but has spread himself to wide. Steyn’s view that western freedom is based on persuasion, not force, grounded in Luke’s account of the ascension, is both profound and correct, in my view. There’s more to him than the music.

My speculation is that he has a contingency deal with his lawyers, leaving him with very little money stake in the outcome. That could explain his odd reluctance to put time into helping with pleadings.

I presume a contingency deal would make the client pay the costs if he withdraws and negates the possibility of winnings.

Of course, if it’s all on a contingency basis and the lawyers didn’t think they were going to win, they’d want to see the case settled. I suppose regardless of contingency issues they’d have a duty to advise Mann to settle.

Szilard,
There is a difference between settling and withdrawing. Settling would (probably) still yield some cash. I don’t know how contingency works here in practice – it’s not allowed here. But I don’t think lawyers would cover costs if the client could just walk away.

Nick wrote: “Settling would (probably) still yield some cash (for Mann)”. How in the world do you figure that Steyn and company are going to hand cash to Mann in a settlement? The chances of that happening are vanishingly remote.

Nick,
The contract proposed to us by attorneys for a contingent fee suit on a wrongful termination (for whistleblowing), established that they could stop work on at their sole discretion but if we wanted to continue, then it would be at their customary fees and of course expenses. If we chose not to pursue it, we owed them customary fees and expenses for work to date, which I thought was fair.

We decided not to pursue our suit thinking that there was a significant risk of owing our attorneys a whole lot of money while recovering nothing from the other side. We also concluded that contingent fee wrongful termination suits were for the very rich or very poor, not us.

It is very hard to believe that Mann’s suit could be on a contingent fee basis, more likely funded by people who like him. I doubt that he or his attorneys could ever recover their costs for something like this.

Nick,
Steyn’s reluctance to help with pleadings is because he believes he is being bullied and the best way to stop this is by fighting back. He does not want to be involved in prolonged proceedings purely to withdraw the case.
Further you should state that Mann was wrong to use the word fraud privately, publicly or whatever if you are going to insist on Steyn being wrong to use it.
Furthermore there must be one iota of your being that knows that Mann’s work may be fraudulent, probably more than one as being a scientist and understanding the issues, his work processes must cause you continued grief.

I have a different take. I think Mann wants to sue people who denigrate his work and that he thought it over somewhat. From Williams’ standpoint, Mann was an exemplary, Nobel winning scientist who was falsely accused of fraud by a know-nothing irresponsible twerp. Williams had no idea of the many problems with Mann’s work as well as Mann’s irresponsible personal behavior. Having represented Gordon Liddy & Tobacco companies, he said to himself, this is no big deal, I will take this twerp down. I strongly suspect that he took the case on a contingency basis because he has hired outside help (Attorney Grimm) and because from his standpoint, he thought that the actual facts would be an easy matter to handle. Also, I suspect he initially thought that his fees would be higher on a contingency basis as opposed to an hourly fee basis. I also believe that he expected the real challenge would be the legal standard, of which he was willing to gamble his time.

With the mistakes he has made, I personally believe he is in over his head and that he will have a very difficult time dealing with the facts (in substantial measure because he has an unreliable client) I wouldn’t be surprised at this time if he is beginning to wonder whether the case is worth his time. If I was an opposing lawyer, I would try to work him on the actual facts because, from Williams’ perspective, they are so muddled that I don’t believe he, or his firm, can handle responding to all of the errors and irresponsible statements made by Mann. At some point in time, he may lose his heart to fight.

JD
Steve: it’s interesting to speculate on Williams’ motives and understanding. I think that there is very convincing evidence that Mann’s lawyers got completely lost on the fact that Mann did not do work on temperature data. The paragraph 2 misrepresentation is the tip of the iceberg. They misunderstood the EPA decision as evidenced by their “money quote” from EPA which is about temperature data, but construed as exoneration of Mann. Their narrative on CEI also reflects misunderstanding of temperature data. They aren’t the first to misunderstand that temperature data and proxy reconstructions aren’t equivalent – Sarah Palin made the same mistake on hide-the-decline. But there’s a definite irony in observing that Mann’s lawyers seem to share the misunderstanding. I have a too-long post in the works on this topic. I’m trying to break into parts, so that I can finish it.

Steyn was a big hit as a political columnist for the new National Post when Conrad Black launched it in 1998. Across a huge range of subjects, no contemporary writer can repeatedly nail his point with such clarity, irony and humour. I don’t think there’s a comparison in journalism since GK Chesterton. Anyone long familiar with his work knows that for all his bawdy jokes and affected insouciance, he researches his topics into the ground, and you get the sense of a thick book’s worth of notes behind many of his columns. If Mann thought Steyn was some lightweight clown who tossed off a random, nasty comment one day, he has completely misjudged matters.

That Steyn is a great historian of 20th century show tunes and standards only adds to his appeal for me, as I’ve been listening to those tunes since Nilsson covered them, long before it was cool.

My interest in this case is also heightened by the the fact that there can’t be all that many people in the world who have become famous for attacking the hockey stick, and who have recorded a Christmas album called Making Spirits Bright.

I find this whole situation bizarre beyond belief. In the Climategate emails, Mann is crticized, not just by his colleagues, but by his collaborators, for 1) being a real ass, 2) willing to stretch the data to conclusions that are not supprted, 3)bullying others to do the same.

Distingiushed scientists such as Broecker call his work by an expletive, and Henk Tennekes says he is a disgrace to the profession.

For his part Mann practising extreme name-calling against any climate scientist that disagrees with his self-styled orthoodoxy. Thus we have Judy Curry being called “anti-science” as well as similar claims against the Pielkes, Bengtsson, Lindzen.

So, with whom does he end up locked in a legal battle over defamation? A music/theater critic. Why? Why did they pick Steyn to go after? Either the strategy is larger tha anyone can imagine (i.e. silencing *anyone* who disagrees with climate orthodoxy) or Mann picked his targets rather haphazardly.

Going after a widely published climate scientist, no matter what they said about Mann’s work, would just make Mann look bad (I mean, Judith has well over 100 pear reviewed publications, including a bunch in 2013 and 2014, books, etc), and would pretty much eliminate appeals to authority in front of a jury. He probably has enough sense to avoid such comparisons. Going after someone like Steyn probably looked easier. That will turn out to have been a mistake if
the Appeals Court throws out his case as a SLAPP and Steyn presses his counter suit for damages. But I suspect the political leanings of the appeals court make that outcome very unlikely, no matter the quality of Mann’s case, the errors in his submissions to the court, and the many amicus briefs supporting Steyn. At bottom, this a case where the political implications may be more important to the judges than anything else.

“Across a huge range of subjects, no contemporary writer can repeatedly nail his point with such clarity, irony and humour. I don’t think there’s a comparison in journalism since GK Chesterton.”

How about since Mencken?

“Anyone long familiar with his work knows that for all his bawdy jokes and affected insouciance, he researches his topics into the ground, and you get the sense of a thick book’s worth of notes behind many of his columns.”

That’s true of Mencken’s writing too–it was the unseen part of the iceberg that gave it great weight–although I credit not immediate research, but rather a prodigious memory and an incredible reading speed (as a book reviewer) for his background knowledge.

Indeed, Ross McKitrick. Steyn is a polymath, and possibly the best journalist writing in English today. Given the range and quantity of his output, the scarcity of errors of fact is remarkable – and what’s more, when he makes one, he owns up via his Mailbag column.

I agree that Mann probably mistook his often lighthearted style for a lightweight intellect. Nothing could be further from the truth.

Steyn is a master of strategy, which is why he parted from the CEI lawyers, who were focused on tactics. Either he will win, or deliver a victory to Mann that will make Pyrrhus and his lads look like the luckiest outfit in the ancient world.

Tom Fuller: I highly doubt that he [Mann] thought it would get this far and I would not be surprised if he took advantage of the first opportunity to retreat and claim victory.

Just my opinion here, but I think Mann and his lawyers will not retreat. They will carry on with this lawsuit wherever it goes, even if goes to a jury trial.

And if Mann’s lawsuit is dismissed by the courts, and even if it eventually goes to trial and he loses a jury verdict, Mann will publicly claim that he was in the right regardless of what the courts and/or the jury decided, and that he will not be deterred from filing other lawsuits against anyone who publicly characterizes his work as fraudulent.

In other words, even if he loses this round, Mann will dare his critics to be the next one to use the F word against his work and thereby risk having to go through the time and expense of defending themselves against a Mann lawsuit.

I think that Mann only went a little too far in his action. Tim Ball separately, Rand Simberg and the Competitive Enterprise Institute haven’t much will and haven’t got large teeth. He would have prevailed against only them, had he left national Review out of the action. And had he done so, none of us would be writing about him and his lawsuit here and now.

Steve: actually, right now, we’re talking about proceedings (the anti-SLAPP appeal) which Steyn isn’t involved in. If CEI and National Review prevail in this appeal, it will not be because of Steyn’s “teeth”. Would I have written about the various false statement in Mann’s pleadings if it were just CEI and Simberg. I think so – it’s a topic where I have fairly unique specialist knowledge, plus I’m interested in the interplay of legal and science issues.

I hope Steyn and his lawyers are taking advantage of SM’s and commenters insights.
As an aside, can the question of the use of “fraud” be put to Mann as part of a deposition? If so, can his answer be introduced at trial?

Calling a person a fraud is much worse than calling a piece of work a fraud. Imagine someone calling you a thief just because you failed to return some money some time in the past, and therefore technically stole it.

While not US law, the following illustrates my point — a person convicted of murder can successfully sue when someone calls him “a murderer”:
Jorgensen v News Media (Auckland) Limited [1969] NZLR 961 is a New Zealand defamation case. Ronald Jorgensen despite being convicted for murder involving one of New Zealand’s most notorious killings, found that the Sunday News referring to him to being involved in the murders was defamative to him.

Strange laws in NZ. And I agree with you that a person being a fraud is worse than a study. However, in the USA, calling a person a fraud is much less severe – as it entails a personal opinion which is protected speech. Calling a study a fraud, however, can be proven or disproven.

Why does this remind me of the following quotes from Alice in Wonderland:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master— that’s all.”

Is there a McIntyre or McKitrick response to Mann’s RealClimate post (http://www.realclimate.org/index.php?p=111) mentioned in his email accusing them of fraud? I did a search but didn’t find one. I figured their would be a prominent blog posting at Climate Audit addressing it.
Steve: there are many CA posts discussing the Mann controversy.

I have been reading Mark Steyn for years. He is a top notch polemicist, humorist and
debater. So I am not at all surprised by his comments. A columnist should be allowed to
write………..commentary. His adversaries are free, at least for awhile I presume,
to defend themselves in writing, on the air or in person, and counter his ideas just as vigorously.

Are Mann’s comments on Twitter and in other media relevant to the upcoming action? If Steyn’s lawyer can just read them out one at a time and ask if Mann in fact wrote them, I can’t imagine the case going too far.

“Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also be made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.” (USlaw.com)

Mann’s intentional failure to disclose and efforts to hide the “dirty laundry” residuals looks like textbook frAaud.
Steve: it’s interesting to see how EPA brushed off the “dirty laundry” email. Curiously neither I nor anyone else seems to have realized at the time that EPA had done an “inquiry” that involved Mann. I noticed the supporting volumes about 15 months later and did one post, but otherwise hadn’t paid any attention to their comments on Mann. Their commentary seemed more partisan than Muir Russell or Oxburgh, almost like Real Climate posts, and therefore not worth parsing, but I’m re-examining it now.

The gyrations reflected here by some scientific and linguistic acrobats in justifying the humongous contradictions by the EPA and Mann are simply incredible. How to cut that Gordian Knot? Two words: “First Amendment”. What happened to them here? Both seem to have disappeared. What’s up with that?

The use of the f-word by Mann and Steyn seems more rhetorical than definative. In both cases it is used as a generalization without specifics and there are no follow up specifics. Steyn’s use seems like obvious opinion. It’s in an editorial for an opinion magazine. Mann’s use, while arguably more specific, looks like flustered hyperbole. Whether appropriate or not, I think this particular f-word, along with another commonly used one, have just fallen into widespread use as rhetorical hyperbole.

Christy left out a further fundamental problem in the amputation: there was no disclosure of the amputation in the IPCC 2001 report itself.

The impropriety of deleting adverse data in an IPCC graphic was easily understood in the broader world of brokers, accountants, lawyers and fund managers and one on which there was negligible sympathy for excuses. Not only did this appear to be misconduct as far as the public was concerned, the deletion of adverse data in the IPCC graphic appeared to be an act of “omitting data or results such that the research is not accurately represented in the research record” – one of the definitions (“falsification”) of academic misconduct in the NSF and other academic misconduct codes.